JUDGMENT : Goutam Bhaduri, J. 1. This criminal appeal is filed under Section 374 (2) of the Code of Criminal Procedure, 1973 by the appellant against the impugned judgment of conviction and order of sentence dated 02.08.2021 passed in Special Sessions Trial No.08/2019, by the Additional Sessions Judge, Fast Track Court, Surajpur, District Surajpur(C.G.), whereby the appellant has been convicted for the offence punishable under Sections 363, 366 of the Indian Penal Code, 1860 (for short ‘the IPC’) and under Section 6 of POCSO Act and sentenced to undergo R.I. for 7 years with fine of Rs.500/-, R.I. for 7 years with fine of Rs.500/- & R.I. for 20 years with fine of Rs.500/-, respectively plus usual default stipulations. 2. The brief facts of this case are that a report was made by the complainant, the father of the victim on 11.01.2019 that his daughter is found missing since 02.01.2019 and after the inquiry, she could not be found and apprehension was made that by allurement, the appellant/accused took away the minor girl from the lawful custody of the parents and on the pretext of marriage, he committed sexual intercourse, therefore, the offence under Section 363, 366, 376 (2) of I.P.C. and Section 6 of Protection of Children from Sexual Offences Act, 2012 was registered. 3. After the investigation, the police filed the charge-sheet and during the course of trial, the appellant/accused has abjured the guilt and claimed to be tried. The prosecution on its behalf had examined as many as 11 witnesses and and the trial Court by holding that the prosecutrix was below the age of 16 years and was subjected to sexual assault by the appellant convicted and sentenced the appellant as aforesaid. Hence this appeal. 4. Ms. Payal Jail, learned counsel for the appellant would submit that the prosecution has failed to prove the age of the victim to be a minor. She would further submit that no authentic evidence was placed by the prosecution before the trial Court to show that the prosecutrix was minor on the date of alleged incident. Hence this appeal. 4. Ms. Payal Jail, learned counsel for the appellant would submit that the prosecution has failed to prove the age of the victim to be a minor. She would further submit that no authentic evidence was placed by the prosecution before the trial Court to show that the prosecutrix was minor on the date of alleged incident. It is further submitted only on the basis of school admission register (Dakhil Kharij) which is proved by PW-1, the Headmaster, the presumption was drawn, but PW-1 was not the author of the said document and the statement of the father PW-5 would show that the said entry was made on the basis of certain Aanganbadi Certificate but that has not been proved by the prosecution. She would further submit that the statement of the mother PW-6 is ambiguous to show that the age of her daughter to be 15 to 16 years. As such looking into that factor read with the statement of Doctor (PW-7), the benefit of doubt of age of 2 years to be given to the accused/appellant. She would further submit that the documents would go to show that the recovery (Baramadgi) Panchnama Ex.P-3 was drawn in the police station and the statement of prosecutrix under Section 164 CrPC also does not attribute any sexual over act to the Appellant. She would submit that under the circumstances, the facts would suggest that the prosecutrix was forced to leave the house by her family members by abusing and despising her. Consequently in absence of any proved fact that she was in the company of the appellant, the conviction cannot be sustained. 5. Per contra, learned State counsel would submit that the prosecution was able to prove the age of the prosecutrix on the basis of Dakhil Kharij Register, which has not been rebutted in evidence by the accused and the FSL report also affirms the fact about the presence of spermatozoa on the slides, consequently the statement of the prosecutrix along with the FSL report would show that she was subjected to sexual assault by the appellant against her will, therefore, the conviction and sentence is well merited, which do not call for any interference. 6. We have heard, learned counsel for the parties and have also minutely perused the entire record. 7. 6. We have heard, learned counsel for the parties and have also minutely perused the entire record. 7. First of all, the question which arises for consideration is that whether the prosecutrix was less than 16 years on the date of incident i.e., 02.01.2019. The prosecution heavily relied on School admission (Dakhil Kharij) Register Ex.P-1C, which is proved by PW-1, wherein, the date of birth is shown as 26.05.2003. The statement of PW-1, the principal of the School would show that he was not the author of such document. He further states that he is not aware of the fact that on what basis the said date of birth was written and no document was attached to corroborate the same. The seizure of the said document of Dakhil Kharij Register was made from the principal. PW-2 the grand mother stated the age of the prosecutrix to be 15 years. The grand-father PW-3 also states the age to be 15 years but at the same time stated that the date of birth is not known to them. Therefore, only oral statements have been made. 8. The father of the victim (PW-5) at para 7 states that while the victim was admitted in school, her name was got registered by him. He states that in respect of the age on the basis of Angan Badi Document, the date of birth was registered. Admittedly, the said document of Angan Badi was not seized by the police. The father further deposes that while the name of the victim was registered in the school, he has not given any declaration to that effect about the age. The mother PW-6 states the age of her daughter to be 15 years whereas in the cross-examination she volunteers to state her age to be 15 to 16 years. The doctor PW-7, who examined the victim states that on the basis of mark sheet, she has written her age to be 16 years and the mark sheet was not filed by the prosecution. Therefore, what was the age written in the mark sheet on the basis of which, the Doctor recorded the age, has not been produced by the prosecution. Hence it appears that despite availability of Anganbadi document which shows the age of prosecutrix, it was not produced by the prosecution to prove the age of the prosecutrix. Therefore, what was the age written in the mark sheet on the basis of which, the Doctor recorded the age, has not been produced by the prosecution. Hence it appears that despite availability of Anganbadi document which shows the age of prosecutrix, it was not produced by the prosecution to prove the age of the prosecutrix. Except the oral statement of the witnesses i.e., relatives of the victim, no other authentic documents were produced. 9. The Aangan Badi papers on the basis of which the date of birth was written on Dakhil Kharij Register according to the statement of father, is not on record. Likewise the mark sheet on the basis of which, the date of birth was written by the doctor to be 16 years was also not produced by the prosecution. The statement of the doctor, therefore, would show the age to be shown as 16 years, on the basis of some document and in absence of such document, it cannot be safely presumed that the prosecution has proved the age of the prosecutrix that she was a minor beyond reasonable doubt. 10. Turning back to the sexual assault and taking-away the victim from the lawful custody of the parents, the statements of the father (PW-5) and the mother (PW-6) and the victim (PW-4) would be relevant. The statement of PW-5, father, would show that on 01st January 2019 his neighbor was celebrating the new year wherein her daughter victim was also present. At about 11:00 pm, the electricity failure caused. After that when they searched for the girl to go home, she could not be found there. After about half an hour his son brought his daughter from his neighbor’s house and his son told that he had caught the victim and accused Devsharan with a gift at neighbor’s house and after scolding she was brought back. On which, the father made her to understand not to roam around in the night. The witness further states that next day, at 10.00 p.m., he went out for work and came back after two hours. At about 2 o’ clock, her daughter went away from house. Thereafter, he met Ram Sharan and his friend in front of the house of IJ and asked the accused about the whereabouts of his daughter and extended threat that if the daughter is not found, he will make a report against him. At about 2 o’ clock, her daughter went away from house. Thereafter, he met Ram Sharan and his friend in front of the house of IJ and asked the accused about the whereabouts of his daughter and extended threat that if the daughter is not found, he will make a report against him. On such a say, a scuffle took place between the accused and the witness which was intervened by the grand-father of victim. Subsequent to that, family members i.e., brother and sister-in-law of Ram Sharan came there and said where is the victim and stated that they will make her daughter-in-law (Bahu) of their house. Subsequently on the second day of the incident, he disclosed the incident in police at Basdei and after the new Incharge came to police station, a report was made on 11.01.2019. The report is marked as Ex.P-6 and FIR is marked as Ex.P-7. 11. A detailed analysis of such statement would show that doubt was cast upon the appellant that he has enticed away the girl from lawful custody of parents and kept her forcibly and when such allegations were clamped, it was being resisted by the appellant which aggravated into a dispute and scuffle. Perusal of the statement of P.W.6, the mother, shows that she has deposed that on the second day of January, the family members of Ram Sharan came to their house and quarrel took place between her husband Somar Sai and the family members of accused. At that time, her daughter was not at home but they were doubting that Ram Sharan has enticed away the girl. She also affirms the fact that the family members of Ram Sharan, the accused, had challenged to bring the girl as their daughter-in-law of their house. Subsequently, she came to know that the appellant has kept the daughter in his house i.e., accused. In cross examination, the mother states that the date of birth of her daughter was recorded by her husband. Therefore, both the statements of the mother and father of the victim would show that some dispute took place between the appellant’s family and the victim’s family as the family of victim raised suspicion. The statement of father would show that the victim was recovered from the house of the appellant. The Recovery (Baramdgi) Panchnama, Ex.P-3, shows that the girl was recovered from custody of Ram Sharan, the accused appellant. The statement of father would show that the victim was recovered from the house of the appellant. The Recovery (Baramdgi) Panchnama, Ex.P-3, shows that the girl was recovered from custody of Ram Sharan, the accused appellant. Reading of the statement of the father at para 9 would show that a suggestion was made that when the victim was abused by the family members, at that time, she was in the neighbour house of one Jaipal, but he denied and stated that at that time, the victim was at their own residence. He further volunteered the fact that she was recovered from the house of Ramsharan Singh. He further admits the fact that recovery panchnama (Baramdgi) was written at police station and was signed by them there. He further admits the fact that whatever was written in such recovery (Baramdagi) Panchnama, he has not seen it but he signed it at the instance of the police. 12. A perusal of Ex.P-3 would show that the place of Recovery Panchnama is shown at village Basdei, Mandir Para Ram. It does not say that it was at the house of the appellant whereas in further narration it shows that she was recovered from the house of the appellant. Therefore, the cumulative reading of Ex.P-3 along with statement of P.W.5, the father, the place of recovery has also become doubtful that she was recovered from the house of the appellant on 11.1.2019. 13. Now coming back to the statement of victim P.W.4, she states that on 01st January 2019 she went to her neighbor Jaipal’s house where the event of new year celebration took place. At that time, accused Ram Sharan came and gave her a gift-like bouquet, which was seen by her brother. Her brother slammed the gift and scolded the victim and took her to their house where her father also scolded her. Subsequently, on the next day, she was called by accused in the house of Jaipal. When she went there in the morning, she was advised by the accused not to stay in her house as her family members would beat her and she was further advised to come to a place i.e., mango groove so that he would come to pick up her. When she went there in the morning, she was advised by the accused not to stay in her house as her family members would beat her and she was further advised to come to a place i.e., mango groove so that he would come to pick up her. Thereafter, Ram Sharan and one Ishwar came there in motorcycle and told her that his mother and brother were calling her but after initially being refused, she went along with him to the house of accused wherein subsequently, she was subjected to sexual intercourse. She states that on the next day i.e., 3rd January, one Panchnama was prepared by the husband of Sarpanch namely Hirendra and other villagers, at that time her grand father was also called who is P.W.3 and the villagers told that if she leaves Ram Sharan. she would be ostracized from the Society. Thereafter, Hirendra handed over the girl to Ramsharan’s family members. Thereafter, she stayed there and after 10 days a report was filed on which she was recovered by the Police, her statement was recorded u/s 164 CrPC which is proved as Ex.P-5 which she admits. A perusal of it would show that the grand father of victim refused her to keep her at their house and after 3-4 days, her father made a report. In the facts situation of the case, since the age of victim was not proved by admissible evidence, if the conduct of victim is analysed it would show that she was in the company of the other voluntarily when she was deserted by her own family. In the statement u/s 164 CrPC, the fact of sexual intercourse was not disclosed by victim. According to the statement she came to the police station of her own, therefore, the recovery of P.W.3 from the possession of Ramsharan appears to be negated by the statement of P.W.4, the victim and other witnesses. 14. The doctor who was examined as P.W.7 stated that she examined the victim and no injury was found on the body of victim and according to her, she was not subjected to any recent sexual intercourse. 14. The doctor who was examined as P.W.7 stated that she examined the victim and no injury was found on the body of victim and according to her, she was not subjected to any recent sexual intercourse. The statement of victim also fortifies the statement of father P.W.5 and in her statement, she admits the fact that the major omission was made to the Police u/s 161 CrPC by Ex.D-1 and also admits the fact that the statement was given as per the instructions of her father. 15. Considering the the totality of evidence and since it is observed in the foregoing paras that the age of prosecutrix was not proved beyond doubt and it was under the ambiguity and as the material documents which ought to have been produced were not placed by the prosecution, therefore, in order to ascertain the age, it cannot be otherwise presumed that she was below the age of 18 years as the benefit of doubt needs to be given to the accused appellant. Further the narration of the statement would show that certain quarrel took place between the family members of the accused and complainant party as the girl was in close proximity to exchange gift which aggravated the dispute and recovery of the girl from the custody of the appellant has not been proved beyond the reasonable doubt apart from the fact that the sexual intercourse is also not proved by the prosecution. Under the circumstances, we are inclined to extend the benefit of doubt to the appellant who appears to be 19 years of age on the date of the incident and is in jail. 16. For the foregoing reasons, we allow the appeal and set aside the impugned judgment of conviction and sentence of the appellant. Since the appellant is stated to be in jail, he be set at liberty forthwith, if not required in any other crime.